The Blais and Létourneau lawsuits
against Big Tobacco were launched in 1998

By Geoffrey Lansdell

A $27 billion class action lawsuit against the tobacco industry opened on March
12 at the Quebec Superior Court in Montreal. It is the first class action in
Canada against the tobacco industry to go to trial and the largest lawsuit in
Canadian history.

Justice Brian Riordan is presiding over the case, which is an amalgamation of
two major class actions against Canada’s three tobacco industry giants: Imperial
Tobacco Canada (ITC); Rothmans, Benson & Hedges; and JTI-Macdonald.

The first case was filed on September 10, 1998, by the law firm Trudel &
Johnston, with Cécilia Létourneau as case representative. Their claim against
the tobacco industry is an addiction class action suit on behalf of Quebec
smokers considered clinically addicted to nicotine — estimated to be 1.78
million people. The Létourneau case seeks $5,000 in compensatory damages
and an additional $5,000 in punitive damages for each smoker. Overall, the case
is seeking $17.8 billion.

The second case, filed on November 19, 1998, is a cancer and emphysema class
action in which the plaintiffs — the Quebec Council on Tobacco and Health and
Jean-Yves Blais — are seeking $100,000 in compensatory damages and $5,000 in
punitive damages for each smoker and ex-smoker in Quebec who has suffered from
cancer of the lung, larynx, or throat, or emphysema. Overall, the Blais
case is seeking $9.45 billion in damages for the estimated 90,000 people
afflicted by these smoking-related diseases.

The library of internal industry documents the trial is bringing to light is of
central importance to this precedent-setting court case. As each ITC witness
stands trial, the plaintiffs’ lawyers enter multiple documents into evidence
that politicians and the public have never seen before. To date, more than 800
documents have been filed.

Collectively, the secret documents reveal how long the industry has known about
the addictiveness and health risks of their products and the various ways they
have lied to the public, concealed their own scientific studies proving the
carcinogenic and addictive nature of cigarettes, created ‘light’ and ‘mild’
cigarettes that were no less harmful than regular cigarettes, and crafted a
denialist rhetoric designed to confuse the public and minimize government
regulation.

“The documents are key elements for de-normalizing the industry and showing the
public who they really are,” says François Damphousse, director of the Quebec
office of the Non-Smokers’ Rights Association. “They have been working outside
the law by stating publicly their products are safe, while these documents prove
they knew their products were addictive and carcinogenic; and the fact that
these documents reaffirm what tobacco control groups have been saying for years
should raise an alarm for legislators who are responsible for protecting the
public.”

Where things get really interesting — and potentially messy — is that the
plaintiff’s side of the courtroom includes attorneys from the Federal Government
of Canada. In both class actions, the federal government has been named a
defendant in warranty, which is similar to being a third-party defendant in
provinces outside Quebec.

In essence, this means that if the tobacco industry is found guilty, they will
turn around and point the finger at the government in order to recover money in
damages awarded to the plaintiffs on the grounds that the government knew just
as much about the health risks of smoking, and did just as little as the
industry to protect consumers.

The federal government’s role

When the tobacco companies filed Actions in Warranty against the federal
government in 2008, the government negotiated a role in which they would assist
the plaintiffs. In return, the plaintiffs agreed to release the government “from
any and all manner of claims by the class members.”

But on September 21, 2011, Justice Riordan ruled that this agreement was not in
the interests of the class members due to the financial magnitude of the case.
Because the lawsuit is worth $27 billion, a guilty verdict has the potential to
bankrupt the three tobacco companies. If that happens and the government is no
longer a defendant in warranty, the claimants would have no recourse to seek
claims from the government.

According to Cynthia Callard, who is writing a daily blog about the trial, the
potential outcome of bankrupting the tobacco industry in Canada begs a vital
socio-political question.

“What do we do if we have a bankrupt tobacco industry? Do we just say, ‘OK
folks, another company can come and settle in?’ Or do we say ‘OK, now’s the
opportunity to do things differently?’ Nobody’s really talking about it yet
because it’s four or five years down the road, but this case already is a game
changer; we just don’t know the extent to which it will change the landscape.”

As for the trial itself, the government has played a very minor role to this
point. The plaintiffs have been calling the witnesses, and will continue to do
so until February 2013. So far, the witnesses have primarily been former
Imperial Tobacco employees, including Michel Descôteaux (director of Public
Affairs and spokesperson during the 1980s and 1990s); Roger Ackman (Imperial
Tobacco’s top in-house lawyer from 1972 to 1999); Jean-Louis Mercier (president
during the 1980s); and Anthony Kalhok (vice-president of marketing from the mid
1960s to the mid 1980s).

The tobacco industry’s secret documents

While the evidence continues to roll in, we have already learned from Roger
Ackman’s testimony that he contributed to the destruction of internal documents
in 1992. In response to plaintiff lawyer Bruce Johnston’s question about whether
he was aware of a prohibition on counsel against aiding in the suppression of
evidence, Ackman replied, “No, sir.”

Unfortunately for Imperial Tobacco, originals of the destroyed documents have
been recovered and entered into evidence.

In a letter written by Imperial’s former head of Marketing Research and
Development Bob Bexon as part of “Project Viking,” which took place in 1986 and
1987, Bexon admits the only thing keeping tobacco companies in business is the
addictiveness of cigarettes.

“The only remaining ‘benefit’ of cigarette smoking is the psychological assist
it provides in terms of stress reduction,” Bexon writes in the confidential
memo. “If our product was not addictive we would not sell a cigarette next week
in spite of these positive psychological attributes.”

Bexon’s ten-page, hand-written memo was sent as an update to senior management
on “Project Viking,” which served to evaluate smokers’ health concerns.

“The crux of the problem is personal health,” Bexon writes. “Social
unacceptability, passive smoking effects, price, aroma, after effects are all
distant seconds to the key smoker’s concern that they are damaging their health
— contributing to their own death.”

“Death is not the entire problem,” Bexon continues. “The key health issue is
lung cancer. Fear of cancer as much as fear of mortality with its public
perception of slow lingering painful etc. (sic) is a real problem.”

This document, acknowledging as it does that smoking is both addictive and
causes lung cancer, strikes a major blow to Imperial Tobacco.

All three tobacco companies on trial had publicly denied that smoking was
addictive and dangerous until June 9, 2000, when Imperial Tobacco and
JTI-Macdonald shocked a Senate Committee that proposed raising taxes on
cigarettes by agreeing to the tax hike and admitting the products they
manufacture are addictive and carcinogenic.

For the first time, Bexon’s letter has provided lawyers, politicians, and the
public with explicit proof that Imperial Tobacco knew the truth about their
products for well over a decade before coming clean.

The question remains: How long has Big Tobacco been lying about its knowledge of
the harms caused by cigarettes?

Less than three months into a complex trial that will last at least two years
before a verdict is rendered, there are still hundreds of internal documents to
come and dozens of witnesses from all three tobacco companies scheduled to take
the stand.

Eye on the Trials

Through an initiative from the Association pour la santé
publique du Québec, the trial has a daily blog in both English and
French. Cynthia Callard, executive director of Physicians for a Smoke-Free
Canada, writes the blog Eye on the Trials, while former Info-tabac
journalist Pierre Croteau writes Lumière sur les procès du tabac.In addition to detailing the daily courtroom drama, Callard and Croteau
provide links to key tobacco industry documents which are filed in an online
database.
To visit the blogs:http://tobaccotrial.blogspot.ca/
http://procesdutabac.blogspot.ca/
To consult the database of tobacco industry documents:
https://tobacco.asp.visard.ca/Main.htm